EPA Revises Water Quality Listing Requirements for April 2000

United States
Environmental Protection
Agency

Office of Water
(4503T) EPA
Washington, DC 20460

EPA-841-F-00-004
March 2000

The U.S. Environmental Protection Agency (EPA) has revised one provision of the Total Maximum Daily Load (TMDL) regulations (40 CFR Part 130) for implementing EPA's responsibilities under section 303(d) of the Clean Water Act. This rule change removes the regulatory requirement that States, Territories, and authorized Tribes submit to EPA by April 1, 2000 lists of water quality limited waters, unless EPA has been required by a court order, consent decree, or settlement agreement to take action based on a year-2000 list. The rule only affects the April 1, 2000 list; it retains the existing regulatory requirement that lists be submitted on April 1, 2002, and on April 1 of subsequent even numbered years.

Overview

Section 303(d)(1) of the Clean Water Act (CWA) requires States, Territories and authorized Tribes to submit to EPA "from time to time" a list of waterbodies for which existing pollution controls are not stringent enough to attain and maintain State, Territorial and authorized Tribal water quality standards. In 1992, EPA revised the regulations implementing section 303(d)(1) to require States, Territories, and authorized Tribes to submit lists of water quality limited waterbodies every two years, with the 1992 lists due no later than October 22, 1992, and subsequent lists due on April 1 of even-numbered years. The most recent listing deadline was April 1, 1998, and all States, Territories, and authorized Tribes have now submitted their 1998 lists.

In August 1999, EPA proposed comprehensive changes to its regulatory requirements for establishing TMDLs under the CWA. The purpose of the proposed changes is to provide States, Territories, and authorized Tribes with clear, consistent, and balanced direction for listing waters and developing TMDLs, resulting in restoration of waterbodies not meeting water quality standards. At that time, EPA proposed to amend the existing TMDL regulations to change the April 1, 2000 date for submitting a list of impaired waters to October 1, 2000. EPA made this proposal because it was unlikely that the comprehensive changes announced in August 1999 would be finalized far enough in advance of April 2000 to inform the States' April 2000 decision making. Due to the extension of the comment period on the TMDL proposal to January 20, 2000, the TMDL rule will not be promulgated sufficiently in advance of October 2000 to allow States, Territories, and authorized Tribes to develop a list of waters using the new regulation.

Revision to the TMDL Regulations

Therefore, on Feb. 2, 2000, EPA proposed to remove the requirement that States, Territories, and authorized Tribes submit to EPA by April 1, 2000 lists of water quality limited waters, unless EPA has been required by a court order, consent decree, or settlement agreement to take action based on a year-2000 list. On March 27, 2000, EPA finalized this rule. The rule change only affects the April 1, 2000 list; it retains the existing regulatory requirement that subsequent lists be submitted on April 1, 2002 and on April 1 of subsequent even-numbered years.

EPA believes that the comprehensive changes proposed in August 1999 will result in better section 303(d) lists than are being prepared under current rules, and that States should begin preparing for the anticipated new listing requirements rather than develop year-2000 lists under the current requirements. Given the anticipated changes in listing requirements, EPA believes that until those new requirements are promulgated, States, Territories and authorized Tribes should focus their resources on establishing TMDLs and submitting them for review and approval, rather than developing a year-2000 list. In order to avoid unsettling a commitment embodied in a consent decree entered by a court, the rule does not relieve a State of the obligation to submit a year- 2000 list where EPA has been required by a court order, consent decree, or settlement agreement to take action based on a State's year-2000 list. Based on comments, EPA believes this constraint only affects the State of Georgia.

Some States may submit lists that were being developed in satisfaction of the listing requirement before the rule was proposed and promulgated. EPA will carefully review any such list, consistent with current legal requirements, to make sure that there is an appropriate basis for any de-listings and that the lists includes all waters for which existing and readily available information indicates that water quality standards are not being met.

This rule revision will become effective once it is published in the Federal Register. A copy of the rule will also be available at: http://www.epa.gov/owow/tmdl/ on the Internet.